Veronica could make history

January 13, 2013

Post & Courier - January 13, 2013

When Matt and Melanie Capobianco watched the birth of their adoptive daughter in 2009, they had no idea their love for this little girl would put them at the center of a decades-old national debate with racial, cultural and political overtones.

But that’s exactly where the James Island couple have found themselves after the U.S. Supreme Court agreed this month to take up their long-running custody battle with 3-year-old Veronica’s biological father, Dusten Brown, a Cherokee Indian.

The decision, which surprised many legal scholars, marks the first time in more than two decades that the high court has taken up a case involving the Indian Child Welfare Act, a 1978 federal law aimed at preserving American Indian families, tribes and their heritage.

Among other things, the act gives American Indian parents preference in custody disputes involving Native American children.

South Carolina courts cited the act in forcing the Capobiancos in late 2011 to turn over Veronica to Brown, who was a stranger to the child.

He returned home to Oklahoma with Veronica, and the Capobiancos haven’t seen her since.

Oral arguments are expected as soon as April, and the case is being closely watched by a variety of groups with a stake in its outcome — tribal groups, adoption agencies and attorneys, Indian law and constitutional-rights experts. It has the potential to affect the way thousands of adoptions are handled each year and alter the playing field for Native American groups from coast-to-coast.

Predicting the way the high court will rule is always a dicey proposition. But the speed with which the court grabbed the case leads many observers to suspect that the justices intend to make a bold statement on this contentious subject. After all, the high court hears only about 1 percent of the roughly 10,000 cases submitted for its consideration each year.

But the justices’ aim remains a mystery.

“I’m a little bit perplexed by this,” said Lorie M. Graham, a professor and Indian law scholar at Suffolk University Law School in Boston. “You would really have to look long and hard to find ambiguity in this legislation. There is not a lot of room for interpretation here.”

Marcia Zug, an associate professor at the University of South Carolina School of Law and an expert in American Indian law, agreed. But that doesn’t mean the court isn’t looking toward change, she said.

“The Supreme Court doesn’t take up cases just to affirm them,” she said.

Zug said she believes South Carolina courts ruled correctly, and she can find no legal basis for the U.S. Supreme Court to take up the case. She fears the high court is looking to dismantle the Indian Child Welfare Act, which she said many consider to be the most important piece of American Indian legislation ever passed.

“It strikes me that the Supreme Court is looking for a way to overthrow (the act), and I really don’t see how they can do that,” she said.

Tribal groups have similar fears, and they worry that the court is preparing to roll back protections put into place to keep outsiders from legally stealing children from their tribes through coercive adoptions and deceit.

The law aims to preserve parental rights and tribal sanctity, placing a child first with blood relatives and, in their absence, with a tribe member.

“We are very concerned,” said Terry Cross, executive director of the Oregon-based National Indian Child Welfare Association. “We don’t want to go back to those times when those deceptive practices were the norm and people felt like they could take our children away in this manner.”

Others say the law is complicated, confusing and applied differently from state to state and from tribe to tribe. They argue that a Supreme Court review is much needed and would likely result in clearer guidelines for all to follow, potentially avoiding the heartache and drama surrounding Veronica’s case.

“What we are looking for is some clarity, not necessarily a dismantling of the act,” said Washington state attorney Mark Demaray, immediate past president of the American Academy of Adoption Attorneys, which has submitted briefs in the Veronica case. “We need to know what the rules of the game are.”

Divisive decisions

Before Veronica was born in September 2009 in Oklahoma, her biological parents canceled their engagement and went separate ways. Brown, an Army soldier, acknowledged paternity in text messages to the mother, but did not give her financial support.

The Capobiancos, who had been through seven failed attempts at in vitro fertilization, met Veronica’s mother through an adoption agency, developed a close relationship with her and adopted the baby at birth. The mother is not an American Indian.

Brown filed for paternity and custody after learning of the adoption four months later, and, as an enrolled member of the Cherokee Nation, argued his case under the Indian Child Welfare Act.

A Charleston County family court judge sided with Brown, and the Capobiancos were forced to surrender the girl to him on New Year’s Eve 2011. The couple then appealed that decision, but failed to win over the state Supreme Court, which upheld the family court ruling by a 3-2 vote in July.

The justices said they ruled with “a heavy heart,” but they were bound by law to give Brown an edge. Though Brown did not support the girl’s mother during pregnancy, his rights as a parent should not be stripped, the court confirmed.

The rulings have fueled strong feelings on both sides.

The Capobiancos’ supporters argue that the courts overlooked Veronica’s best interests, split a loving family and ignored the wishes of Veronica’s birth mother just because Brown is an Indian.

Johnston Moore, a founding member of the Coalition for the Protection of Indian Children & Families, had this to say in an opinion piece published in The Oklahoman, “It was the unfair exploitation of the law’s loopholes that gave rights to a biological father who would have had no rights under state law, resulting in an innocent little girl’s world being turned upside down in an instant.”

Brown’s supporters say the law was fairly applied, helping to reunite Veronica — dubbed “Little Star” by the Cherokee — with her loving father and preserve their culture. They are hoping the high court will do nothing to change that.

“Cherokee Nation believes that ICWA is one of the most important federal laws for the continued existence of tribes,” said Chrissi Nimmo Ross, assistant attorney general for the Cherokee Nation. “The Cherokee Nation is hopeful that the Supreme Court has accepted this case to confirm the lower court decisions and reaffirm the importance of ICWA at the federal level.”

Wide interest

The case and its emotional underpinnings have attracted widespread national attention as it moves through the courts.

The Capobiancos have appeared on the Dr. Phil show, and their story has appeared in The New York Times, The Washington Post and other publications. They also reportedly have fielded offers from Oprah Winfrey’s network, CNN and People magazine to chronicle their legal journey.

For now, however, the couple is keeping a low profile and declining interviews on the advice of their attorneys before the Supreme Court hearing.

Family spokeswoman Jessica Munday would say only that “they are hopeful, and it lies in the hands of the court now.”

The couple has some heavy legal hitters on their side, including Washington, D.C., attorney Lisa Blatt. Blatt has won 29 of the 30 cases she has argued before the Supreme Court. Washingtonian Magazine named Blatt a “superstar” lawyer and one of the “100 Most Powerful Women in Washington.”

Paul Clement, U.S. solicitor general from 2005-08, is working on behalf of the guardian ad litem in the case and has filed a brief in support of returning Veronica to the Capobiancos.

On the other side, Washington, D.C., lawyer Charles Rothfeld is representing Brown and the Cherokee Nation. Rothfeld has worked on more than 200 cases that have gone before the high court, and the National Law Journal last year named him “one of the leading members of the Supreme Court bar.”

Charleston lawyer Shannon Jones, Brown’s local counsel, said Rothfeld also has law students from Yale University working on the case. He is founder and co-director of the Yale Law School’s Supreme Court Clinic, among the largest appellate advocacy programs in the nation.

A tough call

Zug, the USC law professor, said the case should have never reached this point. Had Veronica’s Indian heritage been properly considered from the start, the adoption likely never would have gotten to the point it did, she said.

“There shouldn’t have been this emotional heartbreak,” Zug said.

Yet here we are.

The Capobiancos have said they have been emotionally devastated by the loss of the daughter that became the center of their world.

Brown’s lawyer has said he too has been victimized, vilified for asserting his parental rights and rattled by the venom directed at him.

The Indian Child Welfare Act has been reviewed only once at the highest level. In 1989, Justice William Brennan’s ruling sided with Mississippi’s Choctaw tribe, which challenged an adoption of twins.

In a recent television interview with Charlie Rose, Justice Antonin Scalia, who joined with the majority in 1989, described the case as among the toughest of his career.

Now, Scalia will get another opportunity to weigh in on the law with a court that has a different makeup and, perhaps, a different perspective, said William B. Allen, emeritus professor of political science philosophy at Michigan State University and former chairman of U.S. Commission on Civil Rights under President Ronald Reagan.

Allen, who has been critical of the Indian Child Welfare Act, said the case carries the potential for the court to weigh the constitutional implications of the law and manner in which it is applied. But he is not surprised that the justices have sidestepped the issue for so long.

“I appreciate and understand the court’s reluctance to open this area because federal Indian law is an ugly morass and a big black hole in our law,” he said. “The court has probably wisely decided to stay away from it before now.”

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